Part I: Progressive Is Gross
New York comedian Matt Fisher recently created a viral outrage against Progressive Insurance Company with his blog post, “My Sister Paid Progressive Insurance to Defend Her Killer In Court.” In it, Fisher describes how his late sister’s insurance company, Progressive, defended at trial the driver that was allegedly responsible for his sister’s death in order to avoid paying the full amount of her policy. The story went viral, and “Progressive IDGAF” even got its own meme (pretty funny, actually — check it out).
Everybody at Progressive then proceeded to panic and made as many terrible PR decisions as possible.
First, a bunch of people started tweeting their outrage at the incident to Progressive’s Twitter account, and Progressive decided to provide the exact same reply to all 7 gazillion tweets (next to Flo’s smiling face, of course): “This is a tragic case, and our sympathies go out to Mr. Fisher and his family for the pain…” — over and over and over.
Then, in response to Fisher’s Tumblr post, Progressive flat-out denied that it had ever defended the driver: “To be very clear, Progressive did not serve as the attorney for the defendant in this case. He was defended by his insurance company, Nationwide.” Which is true, in the same sense that it is true that Bill Clinton did not have “sexual relations” with that woman. In court documents, Nationwide is technically listed as the driver’s attorney; however, according to Fisher, Nationwide had already settled to the full extent of its policy by the time the case went to trial. Therefore, since Progressive was the one potentially responsible for the remaining amount (the jury ultimately awarded $760,000), it was Progressive’s attorney who, as Fisher describes, basically ran the show at trial. Progressive was indeed responsible for defending the driver who allegedly killed his sister.
Part II: But Insurance Companies Actually Do Need to Defend the Other Driver
So this is just straight-up awful. A woman pays Progressive each month for insurance, and the result is that they wind up defending the man allegedly responsible for her death. But, actually, this is kind of the way it needs to be. Bear with us here. (And by the way, Progressive, no one is letting you off the hook for your horrendously insensitive PR crap. We’re just talking about your defense of the driver in court.)
The first thing to remember is that the type of insurance that Fisher’s sister apparently had with Progressive was not a no-fault, automatic-payout type of policy. From Fisher’s post, it seems that the other driver carried a very minimal Nationwide policy, but since the Fisher family was entitled to much more in damages than that, the Progressive policy kicked in to cover the difference:
Now, because the other driver was underinsured, that payment didn’t amount to much, but my sister carried a policy with Progressive against the possibility of an accident with an underinsured driver.
So, in a sense, Fisher’s sister really was paying Progressive to defend and pay the amounts owed by anyone who might hurt (or kill) her in an accident. It sounds crazy, right? But think about it this way:
We don’t know all of the evidence that was presented in Fisher’s case, so we don’t know exactly how close of a question the issue of fault was. But let’s say you and I get in an accident. You’re severely injured and you believe it was my fault. Being the cheap bastard that I am, I only have a $15,000 policy. Plus, I’m a blogger/government employee and I have no money, so you’re not getting anything from my pockets directly. But, since you were smart, and you bought insurance from Progressive to protect against exactly this kind of situation, Progressive will now step into my shoes and carry on my defense and then pay you if I lose in court. Because otherwise, who else will defend me? If Progressive is going to pay out
hundreds of thousands of dollars based on the accident being my fault, then there really needs to be someone there to represent my side of the story in court. I can’t hire an attorney personally because I’m broke. Nationwide is technically obligated to defend me, but since their policy was only worth $15,000 anyway, they already paid it out in full, and so now they really don’t care who wins or loses — so they don’t exactly make the best representative. That leaves Progressive, the party that is actually required to pay you if I am found at fault.
In other words, this is exactly what every insurance company will do under the same circumstances. Having a different insurance company probably would not have changed the way this litigation ensued for Fisher’s family, as painful as it must have been to sit through a trial.
Part III: But You Should Really Be Pissed At Maryland For This
But there is one thing that might have changed Progressive’s hesitance to settle — in Fisher’s case, anyway. In most states, if you get in an accident and sue the offending party, the jury looks at how much of the accident was your fault (let’s say it was 2% your fault in this example) and how much was the defendant’s fault (98%). If the jury decides your damages are $100,000, then you receive $98,000. It’s called “comparative fault.” Makes a lot of sense, no?
In Maryland, though, where the accident took place, they use a pure contributory negligence scheme, which means that if the plaintiff bears any of the fault whatsoever, they get absolutely nothing. In the example above, you’re 2% negligent? No damages for you!!!
So, this is why Progressive was being so aggressive. Although Fisher describes it as an “open-and-shut” case, he conceded that the “totality of the evidence left some room for argument.” And where there’s room for argument, there’s certainly room to see how a jury could have found his sister at least a teensy bit negligent — and then let Progressive off the hook entirely. That’s why Progressive fought it. It happens every day, and it’s not even remotely unusual for an insurance company to do this sort of thing.
Insurance companies are never going to stop defending their financial stake in litigation, and, in some sense, it’s really not fair for us to expect them to. But what we can ask is for Maryland to enact a less Draconian tort system. They’ve considered it before but never done it (ahem, lobbyists? We’re just speculating here). So instead of getting mad at Progressive, which was acting like any other insurance company would, let’s get mad at Maryland instead, and demand that they act like pretty much every other state in the nation by enacting a fairer litigation scheme.